Damages in Sexual Abuse Claims
There are a multitude of factors that affect the assessment of damages in a sexual abuse case including the role of a perpetrator and any institution responsible for introducing the perpetrator to the victim.
When someone fails to take reasonable care and causes, or is partly responsible for an injury, there will be a liability to compensate that person which in NSW is (in most cases) assessed under the Civil Liability Act 2002 (NSW) (“Act”).
The Act limits the types (heads) of damages and losses that can be claimed and imposes caps, threshold requirements and assessment criteria for the various heads of damages.
The legal costs that can be recovered for claims worth less than $100,000 are also capped.
However, not all claims for damages for personal injury in NSW are governed by the Act as there are some exemptions.
The Act does not apply (other than in a limited way) to civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person. Assessment of damages in cases against an abuser will be assessed under common law principles and the caps, restrictions and thresholds under the Act will not apply.
There is a significant difference between an assessment of damages under the Act and an assessment at common law.
An assessment under common law principles will result in significantly more compensation than an assessment under the Act.
The Act provides that a Court cannot award exemplary or punitive damages or damages in the nature of aggravated damages for claims assessed under the Act. These damages are available if the claim is not assessed under the Act.
Aggravated damages are for injured feelings or distress caused. Exemplary damages are awarded where there was a total disregard for unjustified conduct and punitive damages are awarded to punish a wrongdoer. Exemplary damages are awarded as a form of punishment, to deter repetition of reprehensible conduct by the defendant or by others, or to act as a mark of the Court’s disapproval of that conduct.
Under the Act, interest on damages will not generally be recoverable but at common law it is.
This can have a significant impact on damages particularly when the harm was first caused many years ago. For example, the interest payable on an award of damages for pain and suffering (which is also known as non-economic loss) for injuries caused 30 years ago could be up to 60% of the actual award for pain and suffering.
At common law, the caps on non-economic loss, and restrictions and limits on the compensation that can be awarded for care, which are prescribed by the Act, will not apply.
As a result of the exclusion of intentional harm claims from assessment under the Act, compensation payable for injury and loss that has been caused by a perpetrator of sexual abuse will always be higher than an assessment of damages for injuries caused without intent to harm, as those damages will be assessed under the Act.
However, the recovery of damages will always depend on the financial capacity of a defendant and their insurance.
Where a perpetrator of abuse has no financial capacity, or cannot be found, a victim can look to institutions that have failed to take reasonable care to recover compensation. In some situations, an institution will be vicariously liable for the acts of a perpetrator and in other circumstances, liability will arise from a failure to take reasonable care where the institution exposed the victim to the abuser.
Generally, an institution will not be vicariously liable for what amounts to criminal conduct but that is not always the case, and in some circumstances, for example where the abuser is an employee, an institution may have vicarious liability.
Where an institution is vicariously liable for the acts of a perpetrator who intentionally caused harm, claims against the institution will not be assessed under the Act. They are assessed under the common law.
Claims against the institution arising from a failure by the institution to take reasonable care where there is no vicarious liability are assessed under the Act.
Where there is no vicarious liability, the damages will be regulated by the Act and significantly less than damages which would be awarded if the institution is found vicariously liable.
Where the institution is the only target of a damages claim its role in causing harm becomes critical.
At the end of the day there are two regimes for the assessment of damages in sexual abuse claims and one will result in significantly more compensation.
The types of damages and loss that can be claimed under the Act fall into two categories, non-economic loss and pecuniary loss. There are various categories of pecuniary loss which are compensable.
Non-economic loss covers the elements of pain, suffering, disability and loss of amenity of life, in the past and in the future. This head of damages can be referred to as general damages or non-pecuniary loss. A lump sum is awarded as compensation.
Damages for non-economic loss can only be awarded if the severity of the non-economic loss is at least 15% of a most extreme case; and where the non-economic loss is equal to or greater than 15% of a most extreme case, damages are to be awarded in accordance with a table to a maximum award of $705,000. The court will make a percentage assessment of the injuries and disabilities compared to a most extreme case and once that is assessment is made, the amount of damages for non-economic loss is determined from the table.
Pecuniary losses include income loss, superannuation losses and out-of-pocket expenses such as voluntary and commercially provided care expenses. The components which will be subject to a damages award under the Act include:
- Lost income:
(a) Past economic loss is awarded for impairment to income and earning capacity when
the impairment is productive of income loss.
(b) Damages for past and future loss of income are allowed because diminution of
earning capacity is or may be productive of financial loss. A Court must
disregard the amount (if any) by which a claimant’s gross weekly earnings would, but for the injury have exceeded an amount that is three times the amount of average weekly total earning of all employees in NSW ($1,378.60) at the date of the aware.
- Past and future loss of superannuation will also be awarded, although it is important to note that compulsory superannuation contributions was only introduced in Australia from 1 July 1992.
- Out-of-pocket expenses:
(a) Expenses incurred are recoverable to the extent that they are reasonably incurred and expended in the treatment of injuries caused.
(b) Damages for the cost of future treatment are allowed.
(c) In general, claims for out-of-pocket expenses are based on needs for treatment, past and future rehabilitation, and aids to assist a person overcoming disability arising from injury including home modifications and disability aids.
- Gratuitous Care:
(a) Care provided by friends or family on a gratuitous basis are allowed.
(b) As with all heads of damages, a victim may recover compensation for the loss of capacity for self and domestic care only if the need for the care arises out of injuries suffered.
(c) There is a threshold on the recovery of damages that requires that not less than six hours per week be provided for a period of at least six consecutive months.
(d) The maximum amount recoverable is set, where services are provided for more than 40 hours per week at the weekly sum that is the Australian Statistician’s estimate of the average weekly total earnings of all employees in NSW, and where the weekly requirement is less than 40 hours, at the hourly rate that is one-fortieth of this figure.
- Commercial Care:
(a) Where care is not provided on a gratuitous basis, the reasonable cost of reasonably required commercially provided services is recoverable for services provided in the past and for services that are required in the future.
- Inability to care for others:
(a) Where a person provided care to dependants and can no longer do so because of their injury, compensation will be awarded for the cost required for others to provide the services where there was a reasonable expectation that, but for the injury to which the damages relate, the person would have provided the services to their dependants.
Where claims arising from sexual abuse are excluded from assessment under the Act there are additional components that are awarded and some entitlements are uncapped. The additional entitlements include:
- interest on non-economic loss and pecuniary damages (but not future losses);
- Aggravated, exemplary and punitive damages if warranted.
The entitlements which will be calculated differently are:
- non-economic loss which is not capped and is not based on a table;
- gratuitous care which is not subject to thresholds and caps;
- economic loss assessed without disregarding gross weekly earnings above three times the amount of average weekly total earning of all employees in NSW and at a more beneficial discount rate.
The following are examples of court awards handed down in NSW for sexual abuse personal injury claims:
$1,330,304.60 awarded to a 50 year old male who was abused when he was at school in Year 6 comprising:
(a) 300,000.00 for general damages and aggravated damages;
(b) $148,789.50 for interest on general damages;
(c) $334,761.20 for past wage loss;
(d) $456,243.40 for future loss of earning capacity;
(e) $70,510.50 for superannuation loss; and
(f) $20,000.00 for future medical treatment.
$3,510,513 awarded to a 46 year old male who was abused between the ages of 13
years and 15 years comprising:
(a) $400,000 for general damages and aggravated damages;
(b) $115,000 for interest on general damages;
(c) $840,000 for past wage loss;
(d) $676,363 for interest on past wage loss;
(e) $1,079,483 for future economic loss;
(f) $92,400 for past superannuation loss;
(g) $152,963 for future superannuation loss;
(h) $20,000 for future medical treatment; and
(i) $134,304 for future care.
$840,000 awarded to a 52 year old female who was abused between the ages of 4
years and 11 years and developed a dissociative identity disorder comprising:
(a) $500,000 for general damages;
(b) $100,000 for aggravated damages; and
(c) $240,000 for interest on general damages.
The assessment of damages in sexual abuse claims is complicated. However, our Law Society Accredited Specialists in Personal Injury Law are experts in these claims.
You can reach out to us if you need advice or want to know more about the assessment of damages in an abuse claim.